HIGH COURT OF TRIPURA
AGARTALA
MAC App. No.34 of 2024
The Branch Manager
Oriental Insurance Company Ltd.
BC Ambassa, TRTC Complex
Ambassa, PS:- Ambassa
Dist: Dhalai, PIN:- 799289
(Insurer of the bike vehicle bearing Registration Number TR04-
1911, Bolero Maxi Truck).
------ Appellant
Versus
1. Smt. Dampa Rung Reang @ Damparung Reang
@ Dampaurng Reang,
W/O Lt. Padaram Reang.
2. Shri Dainya Ram Reang @ Dainyaram Reang,
S/O. Lt. Padaram Reang.
3. Miss Debika Reang
D/O- Lt. Padaram Reang
4. Miss Rebika Reang
D/O- Lt. Padaram Reang
5. Smt. Larabati Reang
W/O Daharam Reang
All are resident of Village- Ulemchara
PS:- Ganganagar
District- Dhalai, Tripura
(The Petitioner No.2, 3 and 4 being minor be represented by their
mother, the Petitioner No.1),
PIN-799289
-------Claimant Respondents
6. Sri Matilal Rudrapaul
S/O Lt. Birendra Rudrapaul
Of Ambassa Colony,
PS:- Ambassa, Dist:- Dhalai Tripura
(Owner of the vehicle bearing No. TR04-1911, Bolero Maxi Truck),
Pin-799289.
--------Owner Respondent
7. Sri Rakhshi Kumar Reang
S/O Lt. Uday Kumar Reang present address C/O Smt. Ratnabati
Reang
W/O Mastanjoy Reang of 11/2 Miles, Jagannathpur,
Dist: Dhalai Tripura, P.S.- Ambassa,
(Driver of the vehicle bearing No.TR04-1911, Bolero Maxi Truck)
Pin:- 799289.
------Driver Respondent
Page 2 of 23
For Appellant(s) : Mr. K. De, Adv.
For Respondent(s) : Mr. D. C. Saha, Adv,
Ms. S. Deb Gupta, Adv.
Date of hearing : 26.09.2024
Date of delivery of
Judgment & Order : 30.09.2024
Whether fit for
reporting : YES
. JUSTICE BISWAJIT PALIT
HON’BLE MR
Judgment & Order
This appeal under Section 173 of M.V. Act is
preferred challenging the judgment and award dated
18.11.2023 delivered by Learned Member, MAC Tribunal, Dhalai
Judicial District, Ambassa in connection with case No.T.S.(MAC)
08 of 2022. By the said judgment and award, Learned Tribunal
has determined the amount of compensation amounting to
Rs.33,19,360/- (Rupees thirty three lakhs nineteen thousand
three hundred sixty only) along with 7.5% S.I. from the date of
registration of the claim-petition i.e., w.e.f. 03.06.2022 till the
date of realization of the amount.
02. Heard Learned Counsel, Mr. K. De representing
the appellant and also heard Learned Counsel, Ms. S. Deb
Gupta for the claimant-respondents and Mr. D. C. Saha for
the owner of the vehicle. In course of hearing of argument,
Learned Counsel for the claimants first of all drawn the
attention of the Court that in Para No.10 of the claim-
petition, it was specifically stated that on the alleged day, the
Page 3 of 23
deceased Padaram Reang boarded in the offending vehicle of
DWS Department, which was hired for the purpose of
supplying water in the interior village of Gandacherra to
Ganganagar locality along with the driver was proceeding
towards Ganganagar from Gandacherra side and on the way,
the same met with an accident at Ramnagar turning of
Salbagan, 7 k.m. West from Gandacherra Police Station and
due to that accident, he succumbed to his injuries but the
respondent-claimants in place of filing the claim-petition
under Section 166 of M.V. Act ought to have filed the claim-
petition under Section Employees’ Compensation Act.
Learned Counsel further submitted that as per
Schedule 2 in State Amendment, since the deceased was a
pump operator under Drinking Water Supply Department, so,
there was no scope on the part of the claims tribunal to
entertain the claim-petition filed by the respondent-claimants.
So, Learned Counsel for the claimants submitted that the
petition before the Learned Tribunal was not maintainable and
as such urged for allowing this appeal by setting aside the
judgment and award of the Learned Tribunal below.
Learned Counsel further submitted that in para
No.21 of the judgment and award of the Learned Tribunal
below, a sum of Rs.1,00,000/- was awarded towards love and
affection which was not permissible in the eye of law in view of
the principles of law laid down by the Hon’ble Supreme Court of
Page 4 of 23
India. Learned Counsel further submitted that in determining
the monthly income of the deceased, the Tribunal below first of
all considered the wages of the deceased as a temporary pump
operator at Rs.4,600/- per month and further assessed the
monthly income of the deceased at Rs.10,000/- per month as
an unskilled labourer in view of the notification dated
04.08.2023 of the High Court of Tripura and clubbed both the
income and finally, determined the monthly the monthly income
amounting to Rs.14,600/- per month which was not permissible
because the Tribunal ought to have considered either
Rs.4,600/- or Rs.10,000/- as total income as the said
notification of the High Court says that the notional income of
the deceased for unskilled labourer at Rs.10,000/-, but there
was no scope to club both the incomes, for which the judgment
and award of the Learned Tribunal suffers from infirmity.
Learned Counsel for the appellant urged for
allowing this appeal by setting aside the judgment and award of
the Learned Tribunal below and referred some citations which
would be discussed in due course.
03. On the other hand, Learned Counsels for the
respondent-claimants submitted that although the claim was
filed under Section 166 of the M.V. Act but it is liberty of the
claimant-petitioners either to ought any of the forums to claim
compensation. Furthermore, the appellant before the Learned
Tribunal below did not raise any issue in this regard regarding
Page 5 of 23
maintainability of the proceeding. So, at this stage, there is no
scope to accept the contention raised by Learned Counsel for
the appellant. Learned Counsel for the claimants further
submitted that there was no infirmity in the judgment and
award of the Learned Tribunal below and the determination of
amount of Rs.1,00,000/- towards loss of love and affection was
proper by the Tribunal and in support of her contention, she
referred one citation of the Hon’ble Apex Court reported in
(2021) 2 SCC 166.
Learned Counsel for the claimants further
submitted that in this case, the Learned Tribunal below awarded
rate of interest @7% per annum which should be 9% in view of
the p
rinciple of law laid down by the Hon’ble Apex Court in the
said judgment.
Finally, Learned Counsel for the claimants
submitted that as there is no infirmity in the judgment of the
Learned Tribunal below, so, there is no merit in the appeal filed
by the appellant and urged for dismissal of this appeal with
cost.
Learned Counsel for the owner of the vehicle fairly
submitted that the owner of the offending vehicle had valid
documents including insurance coverage on the day of accident.
04. Here in the case at hand, the respondent-
claimants filed one claim-petition before the Learned MAC
Tribunal, Dhalai, Ambassa. The gist of the claim-petition filed by
Page 6 of 23
the claimant-petitioners was in short is that on 09.12.2021 at
about 2130 hours, when Padaram Reang (since dead) after
boarding in a vehicle bearing No.TR04-1911 (Bolero Maxi Truck)
which was attached to the DWS Department, Government of
Tripura on hire, for the purpose of supplying water in the
interior village of Gandacherra, Ganganagar area was
proceeding towards Ganganagar from Gandacherra, that time
on the way the driver of the said vehicle dashed with a teak
tree at Ramnagar turning of Salbagan due to rash and negligent
driving by the driver of the said vehicle. As a result of which,
Padaram Reang and the driver of the vehicle suffered severe
injuries. Immediately, thereafter, both the injured brought to
Gandacherra Hospital where Padaram Reang succumbed to his
injuries. According to the respondent-claimants, the accident
took place due to rash and negligent driving of the driver of the
offending truck bearing No.TR04-1911 (Bolero Maxi Truck). In
this regard, a specific case vide Gandacherra PS case No.38 of
2021 under Section 279/304A IPC was registered. It was
further submitted by the respondent-claimants that at the time
of accident, the deceased was a temporary Pump Operator
under the DWS Department, Government of Tripura and his
monthly wages was Rs.4,400/- and more so, the deceased was
also a Jhum Cultivator by profession and used to earn
Rs.15,400/- per month by way of jhum cultivation and in total
he used to earn Rs.20,000/- per month and he was 33 years old
Page 7 of 23
at the time of death. Hence, the respondent-claimants filed the
claim-petition before the Tribunal.
The owner of the offending vehicle as OPW-1
appeared before the Tribunal and filed written statement
denying the allegation raised in the claim-petition and
submitted that he was the registered owner of the vehicle
bearing registration No.TR04-1911 at the time of accident and it
was duly insured with the Oriental Insurance Company Ltd. vide
policy No.322794/31/2022/116. The O.P. No.2, i.e. the driver of
the offending vehicle inspite of receiving notice did not appear
before the Tribunal, so, the proceeding was proceeded exparte
against him. The Insurance Company i.e. O.P. No.3 appeared
and submitted that there was no cause of action to file the
claim-petition and denied the assertions of the respondent-
claimants in their claim-petition and further submitted that the
claim-petition was subjected to strict proof.
05. Learned Tribunal below upon the pleadings of the
parties framed the following issues:
(I) Whether the claim petition filed by the
claimantpetitioners U/S-166 of MV Act
maintainable in its present form and
nature?
(II) Whether the deceased Padaram Reang
died out of a road traffic accident occurred
on 09.12.2021 at about 21- 30 hrs at
Ramnagar turning of shalbagan on
Gandacherra-Ambassa road at about 7KM
west from Gandacherra Police Station?
(III) Whether the accident occurred due to
rash and negligent driving by the driver of
the vehicle bearing registration No- TR-04-
1911(Bolero Maxi Truck)?
Page 8 of 23
(IV) Whether the claimant-petitioners are
entitled to get compensation as claimed
for? If so, what should be the quantum of
compensation and to what extent and who
will make the payment of compensation?
(V) What other relief(s) the parties to this
case are entitle to get?
To substantiate the issues, the respondent
claimants have adduced oral/documentary evidence on record.
For the sake of convenience, I would like to refer herein below
the names of the witnesses of the respondent-claimants and
their exhibited documents.
Plaintiff’s witnesses:
PW-1: Smt. Dampa Rung Reang @
Damparung Reang @ Dampaurang Reang.
PW-2: Shri Lum Bahadur Thapa.
PW-3: Shri Mungthangha Reang.
Plaintiff’s Exhibits:
(i) Exhibit P-1 (as a whole)- Certified copy
of the printed FIR in connection with
Gandacherra Police Station Case No.
2021/GNC/038, dated 10.12.2021, in 2
(two) sheets.
(ii)Exhibit P-2 (as a whole)- Certified copy
of written Ejahar.
(iii) Exhibit P-3 (as a whole)- Certified
copy of the seizure list dated 10.12.2021
with a prayer of Investigating Officer, in 2
(two) sheets.
(iv) Exhibit P-4 (as a whole)- Certified
copy of the hand-sketch map in
connection with Gandacherra Police
Station Case No. 2021/GNC/038, dated
10.12.2021.
(v) Exhibit P-5 (as a whole)- Certified
copy of the index of the hand-sketch map
in connection with Gandacherra Police
Station Case No. 2021/GNC/038, dated
10.12.2021.
(vi) Exhibit P-6 (as a whole)- Certified
copy of the inquest report over the dead
body of the deceased Padharam Reang.
(vii) Exhibit P-7 (as a whole)- Certified
copy of the Autopsy Report of the
deceased Padharam Reang, in 3 (three)
sheets.
(viii) Exhibit P-8 (as a whole)- Certified
copy of the joint PO visit report in
Page 9 of 23
connection with Gandacherra Police
Station Case No. 2021/GNC/038, dated
10.12.2021.
(ix) Exhibit P-9 (as a whole)- Certified
copy of the Final Report (under Section
173 Cr.P.C.), in 10 (ten) sheets.
(x) Exhibit P-10 (as a whole)- Certified
copy of the detailed accident report with a
prayer from the Investigating Officer, in
18 (eighteen) sheets.
(xi) Exhibit P-11 (as a whole)- Photocopy
of Survival Certificate of the legal heirs of
the deceased Pada Ram Reang (compared
with the original).
(xii) Exhibit P-12 (as a whole)- Photocopy
of Pupilage Certificate of Late Pada Ram
Reang (compared with the original).
(xiii) Exhibit P-13 (as a whole)-
Photocopy of Aadhaar Card of Late Pada
Ram Reang (compared with the original).
06. On the other hand, the O.P. No.1 has examined as
OPW-1 and he relied upon certain documents which were also
marked as Exhibits in the claim-petition:
Opposite Party’s Exhibits:
(i) Exhibit: D-1 (as a whole)- Xerox copy
of certificate of registration of vehicle
bearing No. TR04-1911 (compared with
original).
(ii) Exhibit: D-2 (as a whole)- Xerox copy
of Insurance Certificate of vehicle bearing
registration No. TR04-1911 (compared
with original).
(iii) Exhibit: D-3 (as a whole)- Certified
copy of seizure list dated 15-12-2021 in
connection with Gandacherra PS Case No.
2021/GNC/038, dated 10-12-2021 for the
commission of the offences punishable
under Sections 279/304A of the IPC.
But the O.P-3, i.e. the present appellant did not
adduce any oral/documentary evidence on record in support of
their defence.
07. Finally, on conclusion of the proceeding, the
Learned Tribunal below allowed the claim-petition by the
Page 10 of 23
judgment and award dated 18.11.2023. For the sake of
convenience, the operative portion of the judgment and award
of the dated 18.11.2023 of the Tribunal below runs as follows:
Order
“Resultantly, the application under
Section 166 of the Motor Vehicles Act,
1988 filed by the claimant-petitioners is
allowed on contest.
Claimant petitioners are entitled to
get the award of Rs.33,19,360/- (rupees
thirty three lacs nineteen thousands three
hundred sixty) only with 7.5% Simple
interest per annum from the date of
registration of claim i.e, w.e.f. 03-06-2022
till the date of realization thereof. Out of
the total awarded amount, Rs. 1,00,000/-
shall be paid to the wife of the deceased,
i.e., claimant petitioner No. 1 and the rest
amount, i.e., Rs.32,19,360/-
(Rs.33,19,360/- minus Rs. 1,00,000/-)
shall be paid equally among the claimant-
petitioners (Petitioner Nos. 1 to 5). The
entire share of the claimant petitioner
Nos. 1 (wife of deceased) and 5 (mother
of deceased) in the award shall be paid to
them directly to their individual bank
accounts.
The entire share of the claimant
petitioner Nos. 2, 3 and 4 (minor son and
daughters of the deceased) in the award
be invested by purchasing separate Fixed
Deposit certificate from any Nationalized
Bank till they attain the age of 18 years
and no loan or advance or pre-mature
withdrawal shall be allowed without prior
sanction of this Tribunal.
However, the claimant petitioner No.
1 shall have the liberty to withdraw the
monthly interest from the Fixed Deposit
Certificate of her minor son and daughters
only for the welfare and benefit of
themselves.
The Opposite Party No. 3, i.e., The
Oriental Insurance Company Ltd., B.C.
Ambassa, TRTC Complex, Ambassa,
PSAmbassa, District- Dhalai Tripura shall
deposit the awarded amount along with
interest thereon within one month to this
Tribunal.
Supply a copy of this award free of
cost to the parties by not later than 15
days from the date of the award.
The case stands disposed of on
contest.”
Page 11 of 23
Challenging that judgment, this appeal is
preferred before this High Court.
08. I have heard detailed arguments of both the sides
and gone through the citations referred by the parties and also
perused the record of the Learned Tribunal below. Admittedly,
in this case, there is no dispute on record regarding the fact and
accident on the alleged day i.e. on 09.12.2021 and also the fact
of death of the deceased Padaram Reang due to said accident.
Now, we are to see whether the claim-petition preferred by the
respondent-claimants was maintainable before the Learned
Tribunal below. On perusal of the judgment of the Learned
Tribunal below, it appears that at the time of delivery of
judgment, Learned Tribunal below framed one specific issue
regarding maintainability of the proceeding. Before the Learned
Tribunal below, the present appellant did not submit any
objection in this regard, nor raised any argument on this point
before the Tribunal. So, the Learned Tribunal below regarding
maintainability of the petition decided the same infavour of the
respondent-claimants.
09. a in National
Hon’ble the Supreme Court of Indi
Insurance Company Ltd. versus Mastan And Anr. dated
09.12.2005 reported in (2006) 2 SCC 641
, wherein Hon’ble
the Apex Court in para Nos.33 and 34 observed as under:
Page 12 of 23
“33. On the establishment of a Claims
Tribunal in terms of Section 165 of the
Motor Vehicles Act, 1988, the victim of a
motor accident has a right to apply for
compensation in terms of Section 166 of
that Act before that Tribunal. On the
establishment of the Claims Tribunal, the
jurisdiction of the civil court to entertain a
claim for compensation arising out of a
motor accident, stands ousted by Section
175 of that Act. Until the establishment of
the Tribunal, the claim had to be enforced
through the civil court as a claim in tort.
The exclusiveness of the jurisdiction of
the Motor Accidents Claims Tribunal is
taken away by Section 167 of the Motor
Vehicles Act in one instance, when the
claim could also fall under the Workmen’s
Compensation Act, 1923. That section
provides that death or bodily injury
arising out of a motor accident which
may also give rise to a claim for
compensation under the Workmen’s
Compensation Act, can be enforced
through the authorities under that Act,
the option in that behalf being with the
victim or his representative. But Section
167 makes it clear that a claim could not
be maintained under both the Acts. In
other words, a claimant who becomes
entitled to claim compensation under both
the Motor Vehicles Act, 1988 and the
Workmen’s Compensation Act, because of
a motor vehicle accident has the choice of
proceeding under either of the Acts before
the forum concerned. By confining the
claim to the authority or the Tribunal
under either of the Acts, the legislature
has incorporated the concept of election
of remedies, insofar as the claimant is
concerned. In other words, he has to elect
whether to make his claim under the
Motor Vehicles Act, 1988 or under the
Workmen’s Compensation Act, 1923. The
emphasis in the section that a claim
cannot be made under both the
enactments, is a further reiteration of the
doctrine of election incorporated in the
scheme for claiming compensation. The
principle “where, either of the two
alternative Tribunals are open to a
litigant, each having jurisdiction over the
matters in dispute, and he resorts for his
remedy to one of such Tribunals in
preference to the other, he is precluded,
as against his opponent, from any
subsequent recourse to the latter” (see R.
v. Evans:(1854) 3 E & B 363: 118 ER 1178
Page 13 of 23
is fully incorporated in the scheme of
Section 167 of the Motor Vehicles Act,
precluding the claimant who has invoked
the Workmen’s Compensation Act from
having resort to the provisions of the
Motor Vehicles Act, except to the limited
extent permitted therein. The claimant
having resorted to the Workmen’s
Compensation Act, is controlled by the
provisions of that Act subject only to the
exception recognized in Section 167 of the
Motor Vehicles Act.
34. On the language of Section 167 of the
Motor Vehicles Act, and going by the
principle of election of remedies, a
claimant opting to proceed under the
Workmen’s Compensation Act cannot take
recourse to or draw inspiration from any
of the provisions of the Motor Vehicles
Act, 1988 other than what is specifically
saved by Section 167 of the Act. Section
167 of the Act gives a claimant even
under the Workmen’s Compensation Act,
the right to invoke the provisions of
Chapter X of the Motor Vehicles Act, 1988.
Chapter X of the Motor Vehicles Act, 1988
deals with what is known as “no fault”
liability in case of an accident. Section 140
of the Motor Vehicles Act, 1988 imposes a
liability on the owner of the vehicle to pay
the compensation fixed therein, even if no
fault is established against the driver or
owner of the vehicle. Sections 141 and
142 deal with particular claims on the
basis of no fault liability on the owner of
the vehicle to pay the compensation fixed
therein, even if no fault is established
against the driver or owner of the vehicle.
Sections 141 and 142 deal with particular
claims on the basis of no fault liability and
Section 143 re-emphasises what is
emphasised by Section 167 of the Act that
the provisions of Chapter X of the Motor
Vehicles Act, 1988, would apply even if
the claim is made under the Workmen’s
Compensation Act. Section 144 of the Act
gives the provisions of Chapter X of the
Motor Vehicles Act, 1988 an overriding
effect.”
On perusal of the principle of law laid down by the
Hon’ble Apex Court in the aforesaid case, it appears that it is
the liberty of the claimants to prefer any of the method for
Page 14 of 23
seeking compensation. The claimant in such a situation, may
claim compensation under the M.V. Act or under the Employees’
Compensation Act. Here in the given case, the respondent-
claimants filed the claim-petition under Section 166 of M.V. Act
and regarding maintainability of the case, a specific issue was
framed by the Learned Tribunal below and the present appellant
did not raise any objection before the Tribunal regarding
maintainability of the claim-petition. So, it appears that the
Learned Tribunal below rightly decided the said issue in favour
of the respondent-claimants. So, as submitted by Learned
Counsel for the appellant, that the suit was not maintainable,
cannot be accepted in the eye of law. More so, Section 167 of
M.V. Act protects the claim-petition filed by the claimant.
10. Now, regarding determination of award amounting
to Rs.1,00,000/- towards love and affection, Learned Counsel
for the appellant in course of hearing of argument relied upon
few judgments:
National
Hon’ble the Supreme Court of India in
Insurance Company Limited vs. Pranay Sethi and Others
dated 31.10.2017 reported in (2017) 16 SCC 680 wherein in
para No.52 Hon’ble the Apex Court observed as under:
“52. As far as the conventional heads are
concerned, we find it difficult to agree
with the view expressed in Rajesh v.
Rajbir Singh: (2013) 9 SCC 54. It has
granted Rs. 25,000 towards funeral
expenses, Rs. 1,00,000 loss of consortium
and Rs. 1,00,000 towards loss of care and
guidance for minor children. The head
Page 15 of 23
relating to loss of care and minor children
does not exist. Though Rajesh (supra)
refers to Santosh Devi, it does not seem
to follow the same. The conventional
and traditional heads, needless to say,
cannot be determined on percentage basis
because that would not be an acceptable
criterion. Unlike determination of income,
the said heads have to be quantified. Any
quantification must have a reasonable
foundation. There can be no dispute over
the fact that price index, fall in bank
interest, escalation of rates in many a
field have to be noticed. The court cannot
remain oblivious to the same. There has
been a thumb rule in this aspect.
Otherwise, there will be extreme difficulty
in determination of the same and unless
the thumb rule is applied, there will be
immense variation lacking any kind of
consistency as a consequence of which,
the orders passed by the tribunals and
courts are likely to be unguided.
Therefore, we think it seemly to fix
reasonable sums. It seems to us that
reasonable figures on conventional heads,
namely, loss of estate, loss of consortium
and funeral expenses should be Rs.
15,000, Rs. 40,000 and Rs. 15,000
respectively. The principle of revisiting
the said heads is an acceptable principle.
But the revisit should not be fact-centric
or quantum-centric. We think that it
would be condign that the amount that we
have quantified should be enhanced on
percentage basis in every three years and
the enhancement should be at the rate of
10% in a span of three years. We
are disposed to hold so because that will
bring in consistency in respect of those
heads.
Further, Hon’ble the Apex Court in another
citation in United India Insurance Company Limited vs.
Satinder Kaur alias Satwinder Kaur and Others dated
30.06.2020 reported in (2021) 11 SCC 780 wherein in para
Nos.34 and 35 observed as under:
“34. At this stage, we consider it
necessary to provide uniformity with
respect to the grant of consortium, and
Page 16 of 23
loss of love and affection. Several
Tribunals and High Courts have been
awarding compensation for both loss of
consortium and loss of love and
affection. The Constitution Bench in
Pranay Sethi (supra), has recognized only
three conventional heads under which
compensation can be awarded viz. loss of
estate, loss of consortium and funeral
expenses. In Magma General Insurance
Co. Ltd. v. Nanu Ram: (2018) 18 SCC 130,
this Court gave a comprehensive
interpretation to consortium to include
spousal consortium, parental consortium,
as well as filial consortium. Loss of love
and affection is comprehended in loss of
consortium.
35. The Tribunals and High Courts are
directed to award compensation for loss
of consortium, which is a legitimate
conventional head. There is no
justification to award compensation
towards loss of love and affection as a
separate head.”
reme Court of
In another citation, Hon’ble the Sup
India in Janabai WD/O Dinnkarrao Ghorpade and others
vs. ICICI Lambord Insurance Company Limited dated
10.08.2022 reported in (2022) 10 SCC 512 wherein in para
Nos.13 and 14 observed as under:
“13. The appellants have not filed any
appeal seeking enhancement of
compensation awarded by the Tribunal
before the High Court. The Constitution
Bench judgment in National Insurance
Company Limited v. Pranay Sethi (supra),
was rendered when the appeal was
pending before the High Court but since
the appeal filed by the Insurance
Company was accepted, there was no
occasion for the High Court to examine
the question of enhancement of
compensation. We find that the appellants
are entitled to enhanced compensation
particularly in respect of future prospects
and other damages in terms of the
judgment of this Court in Pranay Sethi
(supra). Therefore, in exercise of powers
conferred under Article 142 of the
Constitution, we have decided to
recompute the amount of compensation to
be in tune with the Constitution Bench
judgment.
Page 17 of 23
14. The appellant has claimed
compensation on account of love and
affection as well on account of spousal
consortium for wife and for the parental
consortium for the children in the
calculation given to this Court but in view
of three-Judge Bench judgment reported
as United India Insurance Co. Ltd. v.
Satinder Kaur: (2021) 11 SCC 780, the
compensation under the head on account
of loss of love and affection is not
permissible but compensation on account
of spousal consortium for wife and for the
parental consortium for children is
admissible. This Court held as under: (SCC
pp. 797-98, paras 30-35)
“30. In Magma General Insurance
Co. Ltd. v. Nanu Ram:[Magma
General Insurance Co. Ltd. v. Nanu
Ram: (2018) 18 SCC 130 this Court
interpreted “consortium” to be a
compendious term, which
encompasses spousal consortium,
parental consortium, as well as filial
consortium. The right to consortium
would include the company, care,
help, comfort, guidance, solace and
affection of the deceased, which is a
loss to his family. With respect to a
spouse, it would include sexual
relations with the deceased spouse.
31. Parental consortium is granted to
the child upon the premature death
of a parent, for loss of parental aid,
protection, affection, society,
discipline, guidance and training.
Filial consortium is the right of the
parents to compensation in the case
of an accidental death of a child. An
accident leading to the death of a
child causes great shock and agony
to the parents and family of the
deceased. The greatest agony for a
parent is to lose their child during
their lifetime. Children are valued for
their love and affection, and their
role in the family unit.
32. Modern jurisdictions world over
have recognised that the value of a
child’s consortium far exceeds the
economic value of the compensation
awarded in the case of the death of a
child. Most jurisdictions permit
parents to be awarded compensation
under the loss of consortium on the
death of a child. The amount
awarded to the parents is the
compensation for loss of love and
affection, care and companionship of
the deceased child.
33. The Motor Vehicles Act, 1988 is a
beneficial legislation which has been
framed with the object of providing
relief to the victims, or their families,
in cases of genuine claims. In case
Page 18 of 23
where a parent has lost their minor
child, or unmarried son or daughter,
the parents are entitled to be
awarded loss of consortium under
the head of filial consortium.
Parental consortium is awarded to
the children who lose the care and
protection of their parents in motor
vehicle accidents. The amount to be
awarded for loss consortium will be
as per the amount fixed in Pranay
Sethi (supra).
34. At this stage, we consider it
necessary to provide uniformity with
respect to the grant of consortium,
and loss of love and affection.
Several Tribunals and the High
Courts have been awarding
compensation for both loss of
consortium and loss of love and
affection. The Constitution Bench
in Pranay Sethi (supra), has
recognised only three conventional
heads under which compensation can
be awarded viz. loss of estate, loss of
consortium and funeral
expenses. In Magma General
(supra), this Court gave a
comprehensive interpretation to
consortium to include spousal
consortium, parental consortium, as
well as filial consortium. Loss of love
and affection is comprehended in
loss of consortium.
35. The Tribunals and the High
Courts are directed to award
compensation for loss of consortium,
which is a legitimate conventional
head. There is no justification to
award compensation towards loss of
love and affection as a separate
head.”
Referring the same citations, Learned Counsel for
the appellant submitted that the determination of award
amounting to Rs.1,00,000/- towards love and affection was not
proper by the Tribunal and the same was beyond the principle
-noted
of law laid down by the Hon’ble Apex Court in the afore
cases and urged for deducting the said amount from the award.
11. Per contra, Learned Counsel for the respondent-
claimants drawn the attention of the Court referring another
(2021) 2
judgment of the Hon’ble Supreme Court of India in
Page 19 of 23
SCC 166. Referring the same, she submitted that in the said
case, Rs.2,50,000/- was awarded towards funeral charges and
loss of estate and rate of interest was given at the rate of 9%
per annum.
12. I have gone through the aforesaid citations
referred by Learned Counsel for the appellant and also Learned
Counsel for the respondent-claimants and it appears that here
in the facts and circumstances of the present case, the citations
as referred by Learned Counsel for the appellants seems to be
more appropriate. There was no scope on the part of the
Learned Tribunal to determine any award towards love and
affection amounting to Rs. 1,00,000/-, which in my considered
view, Learned Tribunal below committed error in determining
the said amount. Now, regarding the monthly income
amounting Rs.14,600/-, it appears that Learned Tribunal below
at the time of delivery of judgment first of all considered the
monthly income/wages as a temporary pump operator
Rs.4,600/-. Thereafter, Learned Tribunal below further taken
into consideration Rs.10,000/- as notional income for unskilled
labourer in view of the notification dated 04.08.2023 issued by
this High Court. Then, after adding both the amounts
determined the monthly income of the deceased at 14,600/-
per month which in my considered view was not proper.
Learned Tribunal could opt either any of the amount because if
the notification of the High Court was determined, in that case,
there was no scope to take into consideration the said amount
Page 20 of 23
of Rs.4,600/- i.e. the monthly wages of the deceased. However,
the accident took place in the year 2021. The respondent-
claimants took the plea that the deceased was also a Jhumia
Cultivator in addition to his temporary work as pump operator.
But in this regard, no such documentary evidence could be
adduced by the respondent-claimants before the Tribunal.
However, considering the prevalent market price of the year
2021, assuming that the deceased was a daily rated worker. His
monthly income could be assessed to Rs.12,000/- per month in
place of Rs.14,600/- per month, as Tribunal below committed
error in calculating the said amount, i.e. Learned Tribunal below
without any basis clubbed both the income which in my view
was not proper. But since, in addition to temporary pump
operator, the deceased was also a daily labour and he belongs
to Gandacherra, a remote area of Tripura. So, considering all,
this Court is of the considered view to determine Rs.12,000/-
per month as his monthly income i.e. his wages as temporary
pump operator and the balance amount is considered towards
his income as a labour of jhum cultivation.
13. Furthermore, it also appears that Learned Tribunal
below at the time of awarding compensation awarded monthly
interest at the rate of 7.5% per annum. But in this regard,
there is no any specific guideline by any High Courts. Even the
s awarded interest at
Hon’ble Apex Court also in some cases ha
the rate of 9% per annum.
Page 21 of 23
14. So, considering the judgment referred by Learned
Counsel for the respondent-claimants, it appears that at the
time of determination of compensation, the Tribunal wrongly
calculated the rate of interest at the rate of 7.5% per annum
which should be 9% per annum with effect from the date of
filing of claim-petition to till the date of realization.
15. Thus, in the given case the compensation would
be recalculated as follows:
(i) Income per month= Rs.12,000/- only.
(ii) 40% of the award to be added as future
prospects= Rs.4,800/-
(iii) The sum total of (i) and (ii) works at=
Rs.16,800/-
(iv) One fourth (1/4) of the said amount to be
deducted as personal and living expenses of deceased=
Rs.16,800-(minus) … of Rs.16,800/-) i.e. Rs.12,600/-
(v) Compensation after applying multiplier of 16=
Rs.12,600/- x 12 x 16= Rs.24,19,200/-, as per Pranay Sethi
(Supra) and Sarala Verma judgment.
16. So, the respondent-claimants under the head loss
of income would be awarded Rs.24,19,200/- in place of
33,19,360/- awarded by the Tribunal below. In addition to that
the respondent-claimants also would get compensation towards
loss of estate, loss of consortium and funeral expenses. The
Tribunal below awarded Rs.18,000/- towards loss of estate,
Rs.18,000/- towards funeral expenses and for the five claimants
Page 22 of 23
awarded Rs.2,40,000/- as loss of consortium. Since, there was
no objection to this aforesaid amount, so, the same is also
accordingly, awarded in favour of the respondent-claimants.
Thus, the total compensation after modification would comes to
Rs. 18,000/-+ Rs.18,000/-+ Rs.2,40,000/- + Rs.24,19,200/-=
Rs.26,95,200/-. Since, the Learned Tribunal below fastened the
liability of payment of compensation upon the present appellant
and there is no dispute on record in this regard, so, the present
appellant shall pay the aforesaid amount with interest at the
rate of 9% per annum from the date of filing the claim-petition
to till the date of actual payment to the claimants.
17. In the result, the appeal filed by the appellant is
hereby partly allowed. The respondent-claimant-petitioners
would entitled to get Rs.26,95,200/- along with 9% interest per
annum from the date of filing the claim-petition till the date of
actual payment. The appellant be asked to deposit the said
amount either to the Registry of this High Court or to the
Learned Tribunal below within a period of two months from the
date of passing of this judgment. The disbursal of amount to
the respondent-claimants would be made as per the
observation made by the Learned Tribunal below by judgment
dated 18.11.2023.
With this observation, this appeal is disposed of
and modified to the extent as stated above.
Page 23 of 23
Send down the LCR along with a copy of this
judgment.
A copy of this judgment/award also be furnished
to the Learned Counsel for the appellant-Insurance Company
for compliance.
Pending application(s), if any, also stands
disposed of.
JUDGE
Digitally signed by MOUMITA
M OUMITA DATTA
DATTA
Date: 2024.10.01 16:18:12 +05'30'
Purnita